In 2002, the brutal beating of a junior by his classmate at Morehouse College, in Atlanta, made national headlines. The case marked Georgia’s prosecutorial debut of its hate-crime statute, on the grounds that the perpetrator, 19-year-old Aaron Price, had accused 20-year-old Gregory Love of making a sexual advance toward him in a shower stall, and spouted homophobic rants as he retrieved the baseball bat he used to bludgeon Love. The hate-crime statute could have added five years to Price’s 10-year sentence for aggravated battery and assault. But the court’s decision not to convict on the additional criminal code came down to the defendant’s word against his victim’s: Price insisted that he feared for his safety and denied having used such slurs.
The failure to convict Price on the hate-crime statute was criticized by many LGBTQ-rights advocates, and drew attention to how hate-crime laws work—in that many times they just don’t. After last week’s mass murder of eight Georgians, six of whom were Asian women, many people across the country are outraged that local and state officials appear hesitant about, if not opposed to, classifying the massacre by the alleged gunman, who is white, as a racist and misogynistic attack. The anger over the exculpatory statements by the law-enforcement spokesperson Captain Jay Baker, who quoted the suspect as saying he’d had “a bad day,” is rightfully placed. But the public call for hate-crime prosecution would be better served by an understanding that such designations are often purely symbolic.
Despite some conservative backlash to anti-hate protections for LGBTQ people, hate-crime bills historically have garnered enthusiastic bipartisan support. Yet the bills generally do nothing to improve conditions for victimized communities: In cases where they are applied, these laws lengthen sentences for offenses that are already penalized via extant criminal codes, instead of helping prosecute crimes for which perpetrators would otherwise go free. More injuriously, these laws perpetuate a public imagination about violent discrimination that flies in the face of how violent discrimination actually occurs. They do more to narrow the definitions of racism, xenophobia, transphobia, anti-Semitism, Islamophobia, sexism, homophobia, and ableism than they do to expand our legal apparatus and public understanding of what hate crimes are.
Hate crimes are defined as intergroup offenses, typically violent, that are motivated by race, sex, sexual orientation, gender, national origin, religion, or disability. But motivation is a technical legal term that is almost impossible to prove unless an alleged perpetrator is affiliated with a known hate group, is witnessed using epithets during the act, or left physical evidence, such as spray-painted extremist insignia. Both federal and state laws subscribe to this definition, but federal law also holds to a strict “but for” standard, in which the government must prove that the alleged perpetrator would not have committed the crime “but for” the identity of the victim.
FBI Director Christopher Wray said that the suspect’s motive in the Atlanta massacre did not “appear [to be] racially motivated,” and according to investigators, the suspect denied racial animus once in custody. (Recall the Price case: Even though Love had reported hearing Price go on a homophobic rant during the assault, his simple denial of that accusation helped dismantle the hate-crime charge.) And while it is still possible that officials will label the Atlanta shootings as hate crimes, such a statement from Wray neglects the idea that hate crimes, by definition, also include violence against women and not just racism. Overwhelmingly, intergroup violence in the U.S. is male violence against women. And yet femicide (a term coined by the activist Diana Russell in 1976 to differentiate the killing of women and girls because they are women and girls from other homicides), domestic violence, sexual assault, harassment, and stalking are almost never prosecuted as hate crimes motivated by misogyny.
The term hate crime was popularized in the 1980s and has since been coded into law in nearly every state. But the Dyer Anti-lynching Bill of 1918—pushed by the NAACP and abandoned by Republicans when Democrats threatened to filibuster—can be thought of as its distant ancestor. Lynching terrorized Black people throughout the country, though it was predominant in the South, where white people deployed mob violence to thwart Black political, social, and economic competition. The 4,400 victims of lynching from 1877 to 1950 were mostly men, and the 1918 bill, with its lynching-specific framing, neglected to include how Black women were simultaneously experiencing sexualized racial terrorism. (Black women suffragists organized in support of the bill but were critical of this oversight.)
Take the well-publicized 1944 case of Recy Taylor, a 24-year-old Alabama mother and sharecropper, who was kidnapped, blindfolded, and raped at gunpoint by six white men while walking home from church. She promised her attackers her silence in exchange for her life, but defiantly reported her assault to family members, who enlisted the help of a 21-year-old NAACP organizer from Montgomery named Rosa Parks. Taylor’s case was a familiar experience for many Black southern women: Attacks by white men were always racially motivated, and employment in white households left them particularly vulnerable to sexual exploitation. (Of the Black women who were lynched, many were rape survivors who had named their white attackers.) After demanding the prosecution of Taylor’s rapists, Parks was physically assaulted by police, who threatened to jail her if she didn’t leave town. No charges were ever brought against Taylor’s assailants.
That legacy of overlooking sexual violence is one of the many reasons that contemporary hate-crime legislation fails to reconcile how people can be simultaneously targeted for their race, gender, sexuality, and other identities. Couple that with the high legal threshold for establishing motivation (as seen in the Price case), and it becomes clear that hate-crime laws at best hyper-punish perpetrators without expanding the law’s capacity to identify and target discrimination. Instead of encompassing the racial and gendered violence that brutalized Taylor and the Atlanta victims Yong Ae Yue, Xiaojie Tan, Daoyou Feng, Hyun Jung Grant, Suncha Kim, and Soon Chung Park, hate-crime legislation asks that the state decide whether victims were women or people of color in the minds of their attackers.
A year after the Price conviction, the Georgia Supreme Court unanimously struck down its hate-crime statute on the grounds that it was “unconstitutionally vague” in specifying protected groups (leaving the courts to wonder if, for example, a sports fan harassing the opposing team was guilty of such offenses). Upon the 2020 shooting death of Ahmaud Arbery by two white vigilantes, the Georgia legislature resumed a push for a new hate-crime bill. It was signed last June by Governor Brian Kemp and imposed additional penalties for intergroup-bias crimes; it also mandated data collection on these incidents. But just as in the Price trial, proving such biases still hinges on smoking-gun evidence that unmistakably characterizes the perpetrator’s intentions.
Victimized communities are no safer as a result of hate-crime laws that don’t incorporate resources for services that counter inequality. Law enforcement, however, gets an extra helping of funding from these statutes, as well as the power to decide special-victim status for groups that they have historically harmed. Georgia Republicans unsuccessfully advocated for the 2020 bill to include first responders as a protected class, thus defiling the spirit of the law by equating striking a police officer while resisting arrest with burning down a Black church. (Louisiana’s first-responder clause passed.)
Georgia is but one example; hate-crime legislation is nationally ineffective at protecting marginalized groups. Until these statutes are used to expand our understanding of this kind of violence and provide the resources that targeted communities need to be less vulnerable, and until gender violence is recognized as our most prevalent hate crime, then these statutes are little more than an extension of the carceral state.